What does “Formation of Contracts” mean,
as related to Executive Session in the
Davis Stirling Act – Brown Act?
Civil Code §4935.
Executive Session Meetings.
1363.05. (a) Common Interest Development Open Meeting Act.
Civil Code §4925. Open Meetings; Open Forum
The requisites for formation of a legal contract are
- an offer,
- an acceptance,
- competent parties who have the legal capacity to contract,
- lawful subject matter,
- mutuality of agreement,
Agreement entails the transformation of negotiations into a settled bargain or deal. The negotiating process is obviously not contract and the law needs to be able to determine when that process has ceased and the parties have reached finality in their commercial arrangement. The traditional approach to answering the question: have the parties reached agreement? is to apply the rules of offer and acceptance. When a properly constituted offer has been made by one party and accepted by the other, then there is agreement at the moment of acceptance or, more precisely, at the moment of communication of acceptance.
This apparently simple process raises a number of questions which we have to look at, such as: Was an offer made at all? Who makes an offer in certain types of transactions, for example, in auctions or tenders? Is a price list an offer? Is an advertisement an offer? Then it is also necessary to answer further questions about the act of acceptance, such as: does acceptance have to be communicated? Can you accept by silence? Can you accept by just getting on with the commercial task? and so forth.
- what might be exchanged in order to amount to a good consideration. The relationship between the rules of offer and acceptance on the one hand and the rules of consideration on the other hand is that the exchange which constitutes an acceptance of an offer – in effect an exchange of promises is brought about by acceptance – is at the same time the necessary exchange which constitutes the consideration.
- mutuality of obligation, and,
- if required under the Statute of Frauds, a writing * Civil Code 1550 (1) (2) * legal-dictionary.thefreedictionary.com/
My association let bids for re-striping the parking lot.
We got 3 bids. the board discussed the merits of the three bidders and elected to take one of them.
Is this a matter relating to the formation of contracts with third party?
I’m not an attorney so here’s a link to a website done by an attorney on this matter. davis-stirling.com
In my own HOA the Judge “ruled” that the initial bid must be open to all members, but after that the Board could go into executive session. Unfortunately, the ruling wasn’t in writing, so the HOA just continues to make up rules as they go along.
Personally, I can’t understand why someone who gets elected to the Board all of a sudden thinks they are expert on everything and don’t need to listen to any input from the members, who pay mortgages and HOA fees. Plus, the members are the ones who will be using the product or service and may well be on the Board next year.
Resources & Links
Summary of Open Meeting Act 4900 - 4950
by Curtis Sproul Esq